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McGee v. Citimortgage

United States District Court, D. Nevada

October 1, 2014

FRANCINE A. McGEE, Plaintiff(s),
v.
CITIMORTGAGE, et al., Defendant(s)

ORDER

JAMES C. MAHAN, District Judge.

Presently before the court is defendant CitiMortgage, Inc.'s ("CitiMortgage") motion for summary judgment. (Doc. # 51). Plaintiff Francine A. McGee filed a response in opposition, (doc. # 54), and CitiMortgage filed a reply. (Doc # 55).

I. Background

This is a mortgage foreclosure case. On or about September 5, 2006, plaintiff purchased a home located at 6583 Mermaid Circle, in Las Vegas, for $432, 500. (Doc. # 1 Ex. A at ¶ 9). Plaintiff entered into first and second mortgage loan transactions, each with PHH Mortgage Company. ( Id. at ¶ 10). The first mortgage loan was a 30-year promissory note in the amount of $346, 000, secured by a deed of trust on the property. ( Id. at ¶ 11). The second mortgage loan was a 15-year promissory note in the amount of $43, 250, also secured by a deed of trust on the property. ( Id. at ¶ 12).

Plaintiff began to default on her loan payments on or around July 1, 2009.[1] On October 13, 2009, Mortgage Electronic Registration System ("MERS"), as nominee and beneficiary under the deed of trust, substituted Cal-Western as trustee under the deed of trust. On October 14, 2009, MERS assigned the beneficial interest in the deed of trust to CitiMortgage. On or about October 21, 2009, Cal-Western executed and recorded a notice of breach and default and of election to cause sale of real property under the deed of trust on the property.

On or about February 10, 2010, the Nevada Foreclosure Mediation Program issued a certificate for Cal-Western to proceed with the foreclosure process. The certificate stated, "[n]o request for mediation was made or the Grantor has waived mediation."

On April 26, 2010, CitiMortgage assigned the beneficial interest in the deed of trust to FNMA. On or about April 28, 2010, Cal-Western conducted a trustee sale and the property reverted back to FNMA, the beneficiary under the deed of trust.

On or about October 11, 2010, Cal-Western cancelled and rescinded the trustee sale due to "inadvertence and mistake." The rescission purported to reinstate the deed of trust as though the trustee's deed upon sale had never been issued or recorded.

Based on the abovementioned facts, plaintiff alleged the following five causes of action: (1) fraud; (2) negligence; (3) unjust enrichment; (4) violations of the federal Fair Debt Collection Practices Act ("FDCPA"); and, (5) declaratory relief. Plaintiff alleged these causes of action against all of the following: CitiMortgage; Nationstar; the Corey Geib Team d/b/a Re/Max ("Re/Max"); Cal-Western; and, FNMA.

This court's May 13, 2013 order dismissed Nationstar and Cal-Western from this action without prejudice. The order also granted CitiMortgage's motion to dismiss with regard to negligence, unjust enrichment, and violations of FDCPA, but denied 12(b) dismissal of the fraud and declaratory relief claims. This court's September 11, 2014 order dismissed FNMA from this action without prejudice. On May 5, 2014, CitiMortgage filed the instant motion.

II. Motion for Summary Judgment

A. Legal Standard

The Federal Rules of Civil Procedure provide for summary judgment when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that "there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

In determining summary judgment, a court applies a burden-shifting analysis. "When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its ...


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